There will be a 21 percent increase in the number of jobs for truck drivers over the next ten years, according to the U.S. Department of Labor. Currently, more than 20,000 truck driver positions nationwide go unfilled. The driver shortage will become more serious as the driver population ages and drivers retire or experience age-related illnesses, causing a significant shortfall in driver availability. The American Trucking Association projects that by the year 2022 there will be a shortage of 239,000 truck drivers.
It is against this background that the Federal Motor Carrier Safety Administration, for the first time, granted exemptions to the “forced whisper test,” the physical qualifications standard concerning hearing for interstate drivers. This test, adopted more than 40 years ago, precludes moderately to profoundly deaf individuals from commercial truck driving. To pass the test, an individual must be able to perceive a forced whisper at a distance of five feet, with or without the use of a hearing aid.
The FMCSA on February 1, 2013, in a “Notice of Final Disposition,” granted requests for exemption to 40 hearing-impaired drivers. The agency may grant an exemption if it finds an exemption “would likely achieve a level of safety that is equivalent to the level that would be achieved absent such an exemption.” 49 U.S.C. 31136(e) and 31315. The agency said it considered the following factors in determining that the 40 drivers should be granted exemptions for a period of two years:
- A National Association of the Deaf study found that communication in trucking is no longer dependent on hearing loss since drivers now rely on “smart phone technology.”
- Deaf drivers face fewer distractions at the wheel (based on interviews with individuals who are deaf).
- There have been no studies correlating hearing loss and commercial vehicle accidents.
- Studies of private motor vehicle drivers do not support the proposition that deaf drivers are at increased risk.
The FMCSA acknowledged that while hearing impairment could pose a problem for some driver positions, such as motorcoach drivers who need to communicate with passengers in the event of an emergency, this was not the case with the drivers applying for the exemptions. Moreover, the agency declared that “the terms and conditions for the exemptions would not allow the hearing impaired drivers to operate a motorcoach with passengers in interstate commerce.” In addition, the FMCSA stated the exemptions would preempt state laws and regulations.
Although the agency limited the exemptions to the 40 applicants, it announced it would begin rulemaking to address the hearing standard generally. The Equal Employment Opportunity Commission, the Deaf Truck Drivers United and the National Association for the Deaf supported the decision.
The decision highlights some practical issues interested parties should consider:
- In highly regulated industries, job qualification regulations may override the Americans with Disabilities Act. In this case, Department of Transportation regulations concerning the qualifications of commercial truck drivers took precedence over the ADA, including the interactive process.
- A private or commercial trucker considering applying for an exemption may need to consider the exemption procedures in the FMSCA regulations. Notably, both employer and employee may participate and provide input on the application.
- In view of the continued driver shortage, carriers must monitor changes in driver qualification requirements and programs designed to return drivers to the road.